Richard North, 31/05/2017  

Nearly four years ago, for our IEA Brexit competition submission (July 2013, to be precise), we were researching the complications arising from bilateral treaties made between the EU and third countries.

There are, we wrote in the submission, nearly 800 of these registered on the EU treaty database. Some of these are merely memoranda of understanding. Others are time-expired. Many, however, are substantial agreements, from which Britain gains advantages, but only by virtue of membership of the EU.

On the face of it, we opined, Britain is excluded from the terms of such treaties once it leaves the EU. Therefore, it would appear that each treaty will have to be examined and, where necessary, new treaties agreed between Britain and the relevant third countries.

That, we said, would require extensive negotiations, with replacement treaties agreed and ratified before Britain withdraws from the EU. The need to carry out so many negotiations in a relatively short time would stretch diplomatic resources, risking delay in the withdrawal timetable.

We returned to the theme in Flexcit (see page 23 in the current edition) ,where we wrote:
Although the primary concern of the post-referendum negotiating team is the pursuit of an exit agreement with the EU, the UK may well find itself in the position of having also to renegotiate or renew hundreds of other treaties which are in some way dependent for their functioning or even existence on membership of the EU.

Illustrating the potential scale of the problem, currently the European Union lists 881 bilateral treaties on its treaty database, together with 251 multilateral agreements.13 They cover a vast range of subjects from the "Agreement between the European Union and the Republic of Moldova on the protection of geographical indications of agricultural products and foodstuffs" to the "Agreement on fishing between the European Community and the Kingdom of Norway".
But now, with EU treaty database currently listing 946 bilateral agreements (and 268 multilateral agreements) – and all those years after we started looking at them the Financial Times emerges in all its glorious pomposity to "reveal" that its "research" has found "at least 759 agreements with 168 countries must be renegotiated just for the UK to stand still".

This is absolutely typical of this newspaper and the legacy media in general, where nothing exists until their gifted hacks have "discovered" it and where blogs – especially independent political blogs such as – are invisible.

The legacy media would sooner be uninformed or lagging years behind the curve, as it so often is, than acknowledge that there are other (and better equipped) toilers in the vineyard. Slow, and often wrong, it simply cannot handle the competition so it tries to ignore it.

Here, the FT does indeed get it wrong, claiming 759 "separate EU bilateral agreements with potential relevance to Britain", and getting confused about the many multilateral agreements which also have relevance to the UK (not just Britain) – those where the EU is the party making treaties with groups of countries.

At least, though, the newspaper is finally picking up on the issue, telling us that the agreements run "to hundreds of thousands of pages" and span "168 non-EU countries". Within them, it says, are covered almost every external function of a modern economy, from "flying planes to America and trading sows with Iceland to fishing in far-flung seas".

On Brexit day, says the FT, that will all fall away. "By law Britain will overnight be excluded from those EU arrangements with 'third countries', entering the equivalent of a legal void in key parts of its external commercial relations".

Thus does the newspaper suggest that the situation "poses a formidable and little-understood challenge … While Brexit is often cast as an affair between Brussels and London, in practice Britain's exit will open more than 750 separate time-pressured mini-negotiations worldwide, according to Financial Times research".

With that, we are informed that "there are no obvious shortcuts: even a basic transition after 2019 requires not just EU-UK approval, but the deal-by-deal authorisation of every third country involved", before the newspaper then mixes its arguments with comment from "prestigious" talking heads.

Critics fear that these third country treaties, we are further informed, "will open a bureaucratic vortex, sapping energy and resources". According to the paper, "Each agreement must be reviewed, the country approached, the decision makers found, meetings arranged, trips made, negotiations started and completed - all against a ticking clock and the backdrop of Brexit, with the legal and practical constraints that brings". It adds: "Most inconvenient of all, many countries want to know the outcome of EU-UK talks before making their own commitments".

Actually, though, it isn't as bad as the paper makes out – although in some respects it could be worse. The crucial distinction (one the FT doesn't make) is between "exclusive" treaties – those concluded between the Commission and the other parties, where EU Member States are not signatories – and "mixed" treaties, where Member States are co-signatories.

The Air Transport Agreement with the United States, for instance, is a mixed agreement. That means that, although the EU concluded the treaty, all the Member States - including the UK – are named parties to it.

We wrote about this sort of situation in November 2015, pointing out that, under certain circumstances, we could rely on a "presumption of continuity", whence the treaties could be carried over unchanged, as long as we had the agreement of all parties to the treaties.

Since, invariably, the EU is a party, that means we will have to get the agreement of the EU. And in event of a "no deal" walk-away by the UK, that isn't going to happen – another example of how we would be totally screwed if we went for Mrs May's option.

But, as long as we remain on cordial terms with the EU, and get their cooperation on this matter, only the "exclusive" treaties present serious problems, as we discussed here in March last year. Those "exclusive" treaties will have to be renegotiated from scratch, but then, since they only came in with the Lisbon Treaty, there aren't very many of them.

Even then, not all of these are going to be problematical, as with the Acquisition and cross-servicing Agreement between the European Union and the United States of America (ACSA), the purpose of which is to "further the interoperability, readiness, and effectiveness of the respective Military Forces of the EU and the USA through increased logistic cooperation".

Clearly, this replicates Nato provisions and, if the EU can't work though Nato on this, we also have the ABCA programme, set up in 1947 and still in force after an overhaul in 2004.

In revisiting the "mixed" agreements, though, there is the possibility some countries will want to reopen them, and will not permit a simple carry-over. The FT suggests that "there will be a lot of countries with a beef with the EU or the UK and will see this as a golden opportunity to bring up a nuisance issue", but that probably over-states the case.

That notwithstanding, it cannot be stressed enough that a smooth transition will require the active co-operation of the EU. Without it, the FT "worst case" scenario could easily happen. Amongst other things. That could see the cessation of international flights on Brexit Day, and only a gradual resumption of services as new deals come into force.

Anyone who doubts this merely has to look at Article 3 of the EU-US Air Transport Agreement, where each party grants to the other the right to fly across its territory without landing; to make stops in its territory for non-traffic all points in the United States and to perform international air transportation between the United States "any point or points in any member of the European Common Aviation Area (ECAA)".

Without an agreed carry-over, on Brexit Day, the UK ceases to be part of the ECAA, and the Agreement no longer applies to UK-registered airlines. Nor indeed will US registered airlines be able to fly their aircraft to the UK. The chaos we've been witnessing after the British Airways IT failure will be looked upon with fondness, as a mere dress rehearsal.

Interestingly it isn't only the Financial Times which is waking up to this potential disaster. We also see the New Statesman point out that, if Britain leaves the EU without a deal, its right to participate in Open Skies will also end. It is hard, says Stephen Bush in the magazine, to see how for anyone in Britain who likes flying to Europe or America … 'no deal is better than a bad deal'".

So, with painful slowness, struggling to grasp the basic facts, the legacy media is gradually waking up to the implications of a "no deal". But still the Beleavers are convinced that a deal will be struck. The small print, though, says otherwise. And when the whole media does finally wake up to this reality, there will at least be some people who remember that they saw it here first – many years ago, and many times.

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